Calley v. Callaway

• Decision Date: 25 September 1974
• Docket Number: Civ. A. No. 74-7-COL.
• Parties: William L. CALLEY, Jr., Petitioner, v. Howard H. CALLAWAY et al., Respondents.
• Court: U.S. District Court — Middle District of Georgia

382 F. Supp. 650

William L. CALLEY, Jr., Petitioner, v. Howard H. CALLAWAY et al., Respondents.

Civ. A. No. 74-7-COL.

United States District Court, M. D. Georgia, Columbus Division.

September 25, 1974.

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George W. Latimer, Salt Lake City, Utah, J. Houston Gordon, Covington, Tenn., and Kenneth M. Henson, Columbus, Ga., for petitioner.

Charles T. Erion, Asst. U. S. Atty., Macon, Ga., S. Cass Weiland, Dept. of Justice, David P. Schulingkamp and Arnold Anderson Vickery, Edward C. Newton IV, Washington, D. C., for respondents.

OPINION

ELLIOTT, Chief Judge.

Background and Present Status of the Case

On March 31, 1971 Petitioner was found guilty by Army general court-martial of premeditated murder and assault with intent to commit murder in violation of Articles 118 and 134 of the Uniform Code of Military Justice. On February 16, 1973 the Court of Military Review affirmed the conviction. The Court of Military Appeals granted a limited review and on December 21, 1973 affirmed the Petitioner's conviction by a split decision. Having exhausted the appeal procedures provided in the military system, the Petitioner on February 11, 1974 filed a petition for writ of habeas corpus in this court praying that he be discharged from custody on the ground that his conviction is constitutionally invalid.

At the time of the alleged offenses which are the basis of the Petitioner's conviction Petitioner was 25 years of age and held the rank of Second Lieutenant. At that time he had been an enlisted man for approximately 14 months and had been a Second Lieutenant for about 6 months. He had completed his first tour of duty in Vietnam, but when a shortage of junior officers developed he voluntarily extended his Vietnam tour by an additional 6 months.

When he enlisted in the Army he was given the usual basic training and he later asked for and received a recommendation for Officer Candidate School and was accepted for a class starting in March, 1967. After he finished OCS he was assigned to the 11th Infantry Brigade in Hawaii where he was taught the usual infantry subjects and was specifically informed that he was required to give strict obedience to orders.

The Petitioner's first assignment in Vietnam was at Duc Pho. He had a short series of classes there and most of the instruction was given by ARVN instructors. This was his first indoctrination about the character of the potential enemy. He was told that women were as dangerous as men and that children were even more dangerous because they were unsuspected. He was also informed that the women were frequently better shots than the men and that the children were used to plant mines and booby traps. The first military operations in Vietnam in which he was engaged were those in which his unit was used for reconnaissance along trails and in seeking out and seizing enemy materials. During these missions the unit was continually subject to fire from unknown and unseen individuals. A number of men in the company had been killed or wounded and prior to the operation at My Lai Four they had never seen the persons responsible for the death or injury of their buddies. Consequently, they formed the opinion that civilians were in part responsible. Also prior to the operation at My Lai the unit had been used on some ambush missions and about the time of the TET offensive in 1968 the unit had suffered heavy casualties, 95% of which were caused by mines. During the course of an earlier operation one of the platoons of the company walked into a mine field with disastrous results. Without reciting details it can be said that the record shows a resentment by members of the command at the means and methods used by the Viet Cong and their sympathizers to decimate the American units and kill American soldiers.

On March 15, 1968 the company was part of a task force identified as "Task Force Barker". This force was made up of three line companies selected from different units and placed under command of the task force headquarters manned by temporarily assigned officers. In the afternoon of that day there was a memorial service to pay respects to the men of the company who had been killed in battle. Immediately following the service the company captain, Captain Medina, assembled the company and briefed them on the operations of the following day. Generally speaking, he informed them that their mission was to attack and destroy My Lai Four and move on to other villages. They were to take extra ammunition and be prepared to fight aggressively and they were to be opposed by one of the best trained units in the Viet Cong Army. It was estimated that the enemy force would outnumber them by about two to one. Captain Medina further informed them that the reason the American troops had been driven out of My Lai on prior occasions was because the troops were not aggressive enough and enemy troops infiltrated to the rear of the units. Further orders by the Captain were to the effect that the troops would destroy the wells, burn the village and kill all living things. Captain Medina was asked by several of the enlisted men whether when he used the phrase "kill every living thing" he intended to include women and children. According to some of the witnesses his answer was "Yes, it means men, women and children" and that he did not want to see anything living when he came through the village. The record shows that Captain Medina admits having been questioned by enlisted men concerning the meaning of the phrase "kill every living thing" and he testified that he replied "I said, no, you must use common sense. If they have a weapon and are trying to engage you, then you can shoot back." As can be seen, these instructions were subject to some misinterpretation, but it is beyond doubt that the majority of those testifying believed that Captain Medina's orders were to kill every living thing in the village and this included men, women and children. The fact that Medina gave such an order is even more believable when it is considered that he participated at least to some extent in the shootings which followed. The military judge who presided over the trial of Petitioner certainly believed, and the record established, that the orders were given. Exactly what the order was is a matter that was hotly contested at the time of Petitioner's trial.

The plan of operation was that the unit would move to the village by helicopters in either two or three lifts. The Petitioner's platoon was to be flown in the first lift. The tactics decided upon were that when the troops exited from the helicopters they would "hit the ground" because the landing zone would be "hot". As soon as possible two platoons would form a line and reconnoiter forward by fire. The first and second platoons were assigned to be the assault units and the third platoon was to be in reserve. The troops were to be aggressive and this would be an opportunity to "get even" with the enemy and to take revenge for recent heavy casualties.

On the following morning, March 16, 1968, the troops approached the village as planned. This was their first assault and a number of the men were replacements brought in just prior to combat, never having had any combat experience and not having participated in any rehearsals of assault under controlled fire. When the two platoons started forward the men commenced firing and they went through the village killing all animals, burning the hootches, and destroying food and water. During the ensuing operation there were civilians being killed by the members of all three platoons and confusion was everywhere apparent. This could be expected for Captain Medina claims to have occupied his command post on the perimeter of the village and remained there approximately two hours, believing that the firing was coming from the enemy. The village was described as about the size of a baseball field and there were some 100 American troops operating through its area. The company was under strength and Lt. Calley's platoon had many of its technicians missing, and this required substituted assignments. It was, therefore, necessary just before battle for him to assign a number of his enlisted men to new positions and arm them with weapons new to them and they were not proficient in the use of the new weapons.

About 18 months later, just one day before Petitioner was due to be discharged from the Army at Fort Benning, Georgia, charges were preferred against him. He later went to trial on four specifications which charged him with the murder of more than 100 occupants of the village of My Lai, the alleged victims not being identified by name, age or sex. By the time charges were brought against Calley most of the members of the company who participated in the assault at My Lai were no longer in the Army and, therefore, not subject to court-martial. The Army subsequently brought charges against some additional individuals who still remained in the Army, but all of these other cases were either later dismissed or the defendants were promptly acquitted. Of all those present at My Lai on March 16, 1968, only the Petitioner was convicted.

The Petitioner contests the validity of his conviction on a number of grounds, but the Court considers only three of these contentions to be of constitutional dimension and, therefore, appropriate for consideration by this Court on review. These contentions, which will be considered in the order listed, are as follows:

(1) The contention that the Petitioner was denied a fair and impartial trial because of massive adverse pre-trial publicity.

(2) The contention that the Petitioner was denied his right of confrontation with witnesses and was denied compulsory process for obtaining witnesses in his favor.

(3) The contention that the Petitioner was denied due process by being convicted on charges and specifications which were improperly drawn...